29 F. 738 -

29 F1d 738

Case Text

738

FEDERAL REPORTER.

a court of superior. jurisdiction, and full faith and credit are due to its cifficial·acts, when on the face of them, as much so as are due to the.offidlllac1;S of otherqolirtsof record; and, while in this case the reethe matter of notice of the application for the appointmentof. a. guardian, it. dgeS show the. minors were non-residents, and it appeara in the petition for the sale that they had real estate in Morrison county; and every fair intendment must be made that the court as the law contemplated before it assumed to act. The gave court hitd jurisdiction o( thasubject-matter, and the manrier of notice of the appointment Of guardian was left to its discretion. .The notice is presumed to nave been. given, as the court passed upon the question when the appointment was made. I think the i case of Grignonv. Astor, 2 How. 319, is in point. The ex· ercise of jurisdi6tiori in appointing a guardian warrants the presumption that everything necessary:· Wfl,S done before the court acted. In every other respect there is asub/ltantial compliance with the statutes relating to the sale of . by the guardian. The bond which the statute required to be given to the probate court was given children; but this isa matter of procedure, and, at most, it was an error of judg. ment in the court to approve and accept it, and does not render void the subsequeWt sale. .' It is unnecessary to consider the other questions raised. Decree for deferidallt; ap.d it is so ordered.

TuCK 11. OLDS

(OVre'Uit (Jo'Urt,

and another.

1886.)

w: D. Michigan, S. D.

1.

WATE:RIl A,2q) WATER·OOlrnSES-DoCK ON LAKE SHORE.

The owner of the adjacent .land has a qualified proprietary interest in the . soil un.der" the edge of the shore o"f a lake, so as to give him the right to construct aud maintaiq a dock along the shore, and extending the necessary distance. under thewate:r; and, whel1 thus erected, the dock is an appurtenance .of the real estate. A .chattel mortgage upon a dock of which th(l. mortgagor is left in possesSiOIl, no interest in the land upon which the dock is situated being transferred to the is void as against an execution levied upon the land by a judgment creditor of the mortgagor. the mortgage not bemg filed till after the levy .of the ,execution.lIow. St. :Mich. § 6193. .. .

LEVY.· The filing' of a chattel mortgage on a dock situated upon land belonging to the mortgagor, after an execution has1;>een levied upon the lalld. puts such an obstruction in the way of the judgment creditor realizing his just satisfaction out ()f the 'property of the defendant in execution 8S is calculated to inspire doubt and apprehe}1sion in the mi1ll1s of purchasers. and prevent their bidding upon the proparty; and the judgment creditor may maIntain a creditors' bill to have such IQ.ortgage decl4red ffaudulentand void, and to have U set aside. . .'. . ." .

739
In . 'Bill in aid! of execution. Taggart, Wolcott & GanSon, fot' complainant. Dart.'& Call and G. A. Wolf,'for defendants.
'SEV,ER:ENS, J. The complainant in this cause ,obtained It decree in thi$ foithe sum M n,B5.B7, which" with the accruing interest and'costs, temains whollytunpaid. He obtained and issued an execUtion for the collection of his decree, and it was levied' upon the right, title, and interest of OIds tn fractional section 7, in a township in Charlevoix county.' The land in. thiS fraction is only a small portion of a full' section, and lies in the north-east corner of what would be the entire section, were not the restofitcovered, as it 'is, by Pine lake, a considerable sheet of water, intoW'hich at one end fldwsthe River Boyne, and out of which,'at the other end, flows a current, throtigha: short channel and a small intermediate hike,; into Lake Michigan. The fraction has an eastern line rather longer :than the northern, and on its extreme southempoint .is a dock, built, so far as appears, in the ordinary way. The eastern line of the fraction terminates at the south, according to the government survey, at a stake on the sh()l"e of the lake, after corner of the running a certain number of chains from the fraction. The shore of the lake has since receded, and the stake cannot be found. If the fraction extended southwardly to the old shore of the lake, as claimed by the complainant, the dock would be nearly all of it on the front of this description. If, on the other hand, it stopped at the south end of the distance of the measured line of the survey, which ends at some distance north of the lake shore, nearly ail of the dock . would be on. the adjoining land. The complainant now files this bill in aid of his execution, and the gravamen of his complaint is that Olds, in whom is the legal title to the land, executed a chattel mortgage to Aylesworth upon the dock, as security for an amount therein named, which mortgage, although dated some two months prior to the levy of execution, was not','it is alleged, executed until after such levy. The mortgage was not filed until several days after the levy, and t1'.\e· complainant's allegation is that it was a fraudulent device, in which the defendants co-operated, contrived to embarrass the complainant in the sale of the property on execution; and ,he prays that it may be declared fraudulent and void', and that it may be set aside. '. It is alleged that the defendants insist that this dock is personal property, and this is, indeed, implied by the giving and taking. the chattel mortgage; whereas, the complainant claims that it was real tate, that it was therefore covered by his levy, and that the defendants' pretenses and 'action upon the theory that it was personal property obstruct his execution. The defendants, admitting the decree, the execution, and the levy thereof on 'section 7, and the giving of the chattel mortgage on the. dock, nevertheless insist that the mortgage was given bonafide at its date, but admit its filing was after the-levy. Theyalso allege that the dock is only in very small part on' section 7, this ailegationresting on the theory that the eastern line .thereof terminated at

FEDERAL

the southern limit of the distance given for it in the survey. They also claim that it is personal prqrpeJ.;ty,'l1nd say the mortgage is valid. They claim also that OIds had right to illelrtgage the dock, and thereby impress upon it the character of personal property as between himself aI1dhis\Ulortgagee; h.,e had,a right to mqrtgage independently of the levy; and the mortgage is defeated by the levy, or to iwhat: extentit; 18 s,u1;>ptdinated ta Jt, cannot be determined here, but'will be matter fOf futQ.fe if it eyer becomes neces0,; t, , I, . "', ",'., , sary. ,: ,. InsU'ch a proceeding as .:this, and with only these parties before the court,nQiadjudication Cl;tn,.be lX\a(1e by its decree, upon the question of which, can allY one ex-cept the pltrties to this suit. it may be rightfully assumed But, for the purposes of that the 01\1 :s.lwre is the southern"e;xtremity of the eastern boundary of unquestionably is that metes and bounds the sectiol}., .,'l'he general this would.sustain the complainant's contention control distances, that the <Wok fropts the)and levied on. But assuming this, and the facts relative to the chattel, and the pretenses set up by the defendants as to the nature of the property in this dock to be as alleged in the bill, bl;lt withoutnow deciding ,what is too important to be decided and without full discussion, that, as claimed by the oomplain,a1J,t,the,ownership of the land along the shore,would extend by lines perpendicular tathe sh.oretathe middle of the lake, subject to the public right of .navigation, ,I ,think ,there is satisfactory ground of equitablejurisdiotion upon which the bill can be sl.Jstained. It would seem safe to hold that-the owner of the adjacent land h/18,at least, a qualified .proprietary interest in the soil under the edge of the water at the shore; so as to giv.e to him therigqt to'con&iructand maintain a dock along the shore, and extending thenel;\essary distance into the. water, (Yates v. MilVlaukee, 10 Wall. 497; Railroad 00. v. Schurmeir, 7 Wall. 272; Fletcher v., Thunder Bay River Boom ,(Jo., 51 Mich. 277:;s'.C. 16 N. W. Rep. 645;) and'that" iWhen eJ;ected, it would be an l1.ppurtenance of the ,,',' ,.',' real estate;:. ' " The fMts.Qfth,e oase, as disclqsedby the and proofs, are such as to, induce meta apply a remedy, if they also point to one the . court is accu!'ltomed to gh:e. It is st?ongly Wged by counsel for complainant that, in consequence of the claim that the dock is personal property, the complainant is confused as to the ml;lthod of proceeding tosell; for personal property is soldon execution in Michigan by an entii-ely different proceeding from that prescribed for thl:l sale of real estate, and there is no in the case of sale i>f real estate. But, even if the deredemption; fendants' pretenses were more plausible than they are shown by the bill to be, the case in this respect would only present as matter for decision the queationwhether the property levied on is real or personal property, to the end that a party who has made a levy on property of doubtful character in.this respect may be guided by the opinion of the court in his determination of the proper method to take in making sale. The

TUCK 'V. OLDS.

741

court would have its hands too full if it assumed to act as a mentor in every such dilemma, and could hardly excuse itself from giving its adin other equally troublesome perplexities to its suitors. But while I do not think the bill could be sustained on this ground, still I think it may be, as ,one filed to remove an obstruction to the execution. If I assume tnat this dock is a part of the real estate,-and I do, not see how else, upon the allegations of the bill, it can possibly be regarded,-the suit comes to this: upon the facts; it must be found that this chll-ttel Jl1.ortgage, though dated two months before the levy, was either)lQt.infact executed until after such levy, but antedated to give a false l'Iippearance, or else, being executed previously to the levy ,it was withpeld from filing until after the levy, on pnrpose. It is not made to appear ihatpossessionof the dock was delivered to the mortgagee, and the presumption is to the contrary, because......FirBt, it is not customary in transfer possession with the mortgage, the legal title remaining, uuder the present doctrine of its courts, in the mortgagor; and, 8econd, there is nothing to show that any interest in the land, without which possession of the dock would be useless, was transferred to or was ever in the ,mortgagee. Under such circumstances, the statute (How. St. § 6193) declares the mortgage to be void as against creditors. As already pointed out, the complainant ,was such creditor, and he has brought his execution and levied it on this property. Fearey v. Cummings, 41 Mieh.383; S. O. 1 N. W. Rep. 946; Cwper v. Brock, 41 Mich. 488; S. C. 2N. W. Rep. 660; Putnam v ReynoldS, 44 Mich. 114; S. O. 6 N. W. Rep. 198; Wallen v. Rossman, 45 Mich" 333; S. 0.7 N. W. " Rep. 901. Upon the question of the validity of the mortgage as one of chattels, and indepeqdently of the infirmity declared by statute, it must be admitted that the evidence,other than the external indications, to establish the fraudulent character of the mortgage, is not very strong, but is, I think, sufficient with them to cast upon the defendants the burden of proving t11at the mortgage was given bona,fide fO,r a valuable consideration, and this is'not attempted. The principle on which this, class of creditors' bills rests is that the defendant, by some inequitable proceeding, has put an obstruction in the way of the complainant's realizing his just satisfaction out of the property of the defendant levied on. The obstruction must be one calculated to inspire doubt and apprehension in the minds of purchasers, and thus prevent them from bidding upon the property, whereby the process is paralyzed. In such a case the complainant has no adequate remedy at law. Beck v. Burdett, 1 Paige, 305; Jones v. Green, 1 Wall. 330; Thayer v. Swift, Har. Oh. (Mich.) 430, 433. Referring to the statement of the defendants' position in respect to this chattel mortgage, and considering the facts to be as found, it would seem clear that the case'is oue appropriate for the interposition of the court. It is difficult to see how otherwise the complainantcau get any adequate relief. The decree must therefore be entered for the complaiu atltSubstantially as prayed.
4

4

;1.42

FEDERAl, REPORTER.

DEVEREAUX LoAGUE,

'/J.

CITY OF BROWNSVILLE.

Adm'r,

11. TAXING DIST. OF BROWlI"sVILLE.

«(Ji'fc1,it (Jowrt, "Iv. D. Tenne8866.

January 20. 1887.)

L

OoNSTITUTIONAL,LAW-OBLIGATION OF CONTRACT-MuNICIPAL CORPORATIONS -REPEAL OF CHARTERS-TAXATION TO PAY DEBTS OF EXTINCT MUNICIPAL-

ITIES.

Ita municipal charter be repealed. and the same' inhabitants and territory be reorganized into another oorporation, the latter is the successor of the former, both in the corporate oblIgation to pay the existing debts. and those corporate powers of taxationoonferred as a part of the remedy of the creditors; and any statutory prohibition of its exercise is void. under the inhibition of the federal constitution against impairing the obligation of contracts.

2. SAME SUBJECT-MANDAMUS AGAINST THE SUCCESSOR OF EXTINCT MUNICIPAL-

Those agencies, existing for the local government of a municipality, are bound to perform such duties as are necessary to enforce the taxing power, although not especially de,signated for that purpose. if there be a general grant of the power of taxation to the municipality itself. This duty is implied from the general grant. whether it be conferred directly by statute upon the particular municipality, or devolved upon it as the successor in corporate obligation through a grant to its predecessor. Therefore a mandamu8 will lie to enforce. by taxation. the payment of judgments against the original corporation, to be directed to the governmental agencies of the new corporation, they to proceed according to lihe general laws of the state governing the exerCIse of the taxing power, by municipalities possessing tIle authority.

ITIES-JUD,GlIIENTS AGAINST,MUNICIPAL, CORPORATIONS.

8.

SAME SUBJECT-TAXING DISTJUCTS OF TENNESSEE-CASE IN JUDGMENT.

Under the legislation of Tennessee, repealing municipal charters and reorganizing the inhabitants into taxing districts, contrived to, compel creditorS to accept a compromise of their debts at reduced amounts, the prohibitions of the exercise of the taxing p9wer by the new local governments are void, so far as relates to those, grants of that power to the old corporations, which enter into contracts as a part of the remedy of creditors; and the "taxing districts" may be compelled to the power given by these original grants, by according to the general tax 'laws of the state. to certify to the county court clerk the necessary rate to pay the judgment. to be extended upon the tax'books, and collected as other taxes are collected. It is not necessary that the particular officials to perform this dut,Y, shall be designated in ilie statute. but the general grant to the corporation Implies that the officials governing the municipality shall perform it. and it 'Will be enforced by mandamu8 against the new commissioners who take the place of the former mayor and aldermen. "

.. SAME SUBJECT-SPECIAL SE;SSIONS OF LEGISLATURE-SUBJECTS OF LEGISLATION-GovERNOR'S CALL AS A RESTRICTION OF LEGISLATIVlll. POWER- CONSTITUTION OF TENNESSEE OF 1870, ART. 3, !'I 9.

It was not the intention of the constitution of Tennessee to require the governor to define. in his call for an extra session of ,the legislature, the de· tails of the SUbjects of the legislation desired, but only. in a general way. to confine the business to particular subjects. TMrefore a call for legislation "to enable taxing districts to compromise their old debts" does not exclude legislation repealing former grants of taxing power to the taxing districts to pay those debts. G. SerRE FACIAS-REVIVOR OF JUDGlIIENTS AGAINST EXTINCT CORPORATIONSRevivor of a, judgment against the successor of an extinct municipal corpo· , ration is accomplished by a mere suggestion of record. Aacirefaciaa is not , necessary before a mandamus can issue against the new corporation organized in place of th,e old. The practice examined and stated in relation to the effect of the legislation of Tennessee creating "taxing districts" in place of municipal corporations whose charters have been repealed." SUGGESTION OF RECORD ONLY NECESSARY. ,